North Carolina v. Gilbert5/5/1987
d would be "to assume both the infallibility and credibility of the State's witnesses as well as the certitude of their tests." Id. at 555, 178 S.E.2d at 467.
In State v. Knoll, supra, this court recently held that the per se rule of prejudice enunciated in Hill was inapplicable where a defendant charged with driving while impaired under G.S. 20-138.1(a)(2) was not informed of his statutory rights to pretrial release. Under G.S. 20-138.1(a)(2), a defendant may be convicted if his alcohol concentration, "at any relevant time after the driving," is 0.10 or more. G.S. 20-138.1(a)(2). When the Hill case was decided,
the statute provided that a 0.10 alcohol concentration merely created an inference of intoxication. Therefore, under the modified statute, "denial of access is no longer inherently prejudicial to a defendant's ability to gather evidence in support of his innocence in every driving while impaired case" since an alcohol concentration of 0.10 is sufficient, on its face, to convict the defendant. Id. at 233, 352 S.E.2d at 466.
We note that a different result will follow if the defendant is not advised of his rights under G.S. 20-16.2(a), including, under G.S. 20-16.2(a)(5), the right to have another alcohol concentration test performed by a qualified person of his own choosing. Where the defendant is not advised of those rights, the State's test is inadmissible in evidence. State v. Knoll, supra; State v. Fuller, 24 N.C. App. 38, 209 S.E.2d 805 (1974); State v. Shadding, 17 N.C. App. 279, 194 S.E.2d 55, cert. denied, 283 N.C. 108, 194 S.E.2d 636 (1973). With the results of its chemical analysis test inadmissible, the State would then be unable to convict the defendant for driving with an alcohol concentration of 0.10. Instead, the State would be relegated to proving, as it was in Hill, that the defendant was otherwise under the influence of an impairing substance, pursuant to G.S. 20-138.1(a)(1). Here, however, the record shows that defendant was advised of his rights under G.S. 20-16.2(a). The fact that defendant did not avail himself of his right to a second, independent alcohol concentration test does not affect the admissibility of the State's test. State v. Fuller, supra.
Although the trial court found that defendant's constitutional rights were also violated, we see no basis for that finding. While the denial of access to friends, family, and counsel is a violation of the defendant's statutory and constitutional rights, see, State v. Hill, supra ; G.S. 15A-501(5), there is nothing in the record to show that defendant requested, or was denied, access to anyone. In fact, defendant saw his brother shortly after he was administered the breathalyzer test. Moreover, constitutional violations of the kind complained of here must be shown to have caused irreparable prejudice to the defendant, see, State v. Curmon, supra; State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978), and, as already noted, defendant has failed to show any prejudice.
Reversed.
Disposition
Reversed.
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